Allen v. TV One, LLC et al

Filing
96

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
NIKKI WEBBER ALLEN
:
v.
:
Civil Action No. DKC 15-1960
:
TV ONE, LLC
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
in
this
employment discrimination case are a motion for summary judgment
filed by Defendant TV One (“Defendant”) (ECF No. 89), and a
cross
motion
for
summary
judgment
filed
Webber Allen (“Plaintiff”) (ECF No. 90).
by
Plaintiff
Nikki
The issues have been
fully briefed, and the court now rules, no hearing being deemed
necessary.
Local Rule 105.6.
For the following reasons, the
motions for summary judgment will be denied.
I.
Background
Factual Background1
A.
A more complete recitation of the factual background can be
found
in
the
court’s
prior
Defendant’s motion to dismiss.
memorandum
opinion
(ECF No. 27, at 1-8).
denying
Plaintiff
began working as Director of Talent Relations and Casting for
1
Unless otherwise noted, the facts outlined here are
undisputed or presented in the light most favorable to
Plaintiff, the nonmoving party as to Defendant’s summary
judgment motion. Plaintiff’s cross motion for summary judgment
will be analyzed separately.
Defendant when the television network launched in 2004.
(ECF
Nos. 89-4, at 34, pp. 127-28, 43, p. 164; 90-5, at 4).2
Among
other
responsibilities,
Plaintiff
was
charged
with
booking
talent for TV One shows, including TV One-on-One, hosted by TV
One’s founder, chairperson, and board member Catherine Hughes.
(ECF Nos. 89-4, at 34, p. 127; 90-6, at 34, p. 127).
is
also
the
mother
of
TV
President Alfred Liggins.
One
Chief
Executive
Ms. Hughes
Officer
(ECF No. 90-5, at 4).
and
Plaintiff
asserts that she was subjected to a pervasive pattern of sexual
harassment and gender discrimination by Ms. Hughes during the
course of her employment at TV One.
(ECF No. 90-1, at 7).
The
crux of Plaintiff’s claim is that Ms. Hughes insisted repeatedly
that Plaintiff take up a romantic relationship with Mr. Liggins.
(ECF Nos. 89-4, at 45-46, pp. 173, 175-77).
During a business
trip to Chicago in October 2004, Ms. Hughes allegedly said to
Plaintiff, “I’m going to be your mother one way or another.
Either you will marry [Mr. Liggins] or I will marry your father
and be your stepmother.”
at
45,
p.
questioned
173).
why
On
(ECF Nos. 89-4, at 45, p. 173; 90-6,
another
Plaintiff
had
occasion,
not
married
Ms.
Mr.
Hughes
sternly
Liggins
yet,
stating that Plaintiff was old and “[her] babies would probably
be retarded.”
(ECF Nos. 89-4, at 49, p. 187; 90-6, at 49, p.
2
References to the record will be by ECF document and page
numbers. For depositions printed with four pages per sheet, the
internal page numbers will also be included.
2
187, 54, p. 207).
Plaintiff
workplace
to
On various occasions, Ms. Hughes introduced
others
rumors
as
her
that
romantically involved.
“future
Plaintiff
daughter-in-law,”
and
Mr.
fueling
Liggins
were
(ECF Nos. 89-4, at 46, pp. 176-77; 90-6,
at 46, pp. 176-77, 49, pp. 188-89).
When Plaintiff complained
directly to Mr. Liggins about the rumors, he responded, “at
least it makes me look good.”
(ECF No. 90-6, at 32, p. 118).
Once Ms. Hughes realized that Plaintiff was not going to marry
Mr. Liggins, she began to “baselessly attack” Plaintiff’s job
performance, including publicly berating Plaintiff in front of
her
co-workers
Plaintiff
standard
make
(Id.
at
requests
industry
53-54,
for
protocol
pp.
talent
(Id.
at
205-06);
in
a
demanding
manner
54-55,
pp.
that
contrary
208-13);
to
and
chastising Plaintiff for taking time off for her wedding and
honeymoon in 2012 (Id. at 56-57, pp. 214-18).
At a gathering of
TV One employees in January 2014, Mr. Liggins gave a speech
about the history of TV One and screened a video demo reel.
During his speech, Mr. Liggins falsely stated that Plaintiff
joined him in his hotel room to review the video when he was on
a business trip in Los Angeles.
(ECF Nos. 89-4, at 27-28, pp.
101-02; 90-6, at 27-28, pp. 101-02).
this
statement
further
fueled
According to Plaintiff,
rumors
Plaintiff were romantically involved.
3
that
Mr.
Liggins
and
(ECF Nos. 89-4, at 27-28,
pp. 101, 104-05, 31, pp. 114-15; 90-6, at 28, pp. 104-05, 31,
pp. 114-15).
Plaintiff’s
employment
was
terminated
in
late
June
2014
following a dispute with Ms. Hughes regarding the Essence Music
Festival (the “Festival”).
(ECF No. 90-19, at 2-3).
Earlier in
the month, Plaintiff’s supervisor informed Plaintiff that Ayiko
Broyard, an advertising agency executive and personal friend of
Ms. Hughes, wanted the R&B Divas to perform on the McDonald’s
stage at the Festival.
90-6,
at
129-30,
pp.
(ECF Nos. 89-4, at 129-30, pp. 367-71;
367-71).
However,
the
R&B
Divas
already booked for a performance on Walmart’s stage.
were
(ECF Nos.
89-4, at 127, p. 366; 90-6, at 131, pp. 377-78, 132, p. 382).
Concerned about jeopardizing TV One’s relationship with Walmart,
Plaintiff communicated with Denise Bennett, the talent manager
and
TV
One’s
account
representative
handling
the
Walmart
account.
(ECF Nos. 89-4, at 132, pp. 383-86; 90-6 at 131, pp.
376-77).
After being told by Ms. Bennett that Walmart expected
exclusivity with the R&B Divas, Plaintiff issued instructions to
notify Ms. Broyard that TV One was unable to accommodate her
request because of an existing agreement with Walmart.
(ECF
Nos. 89-4, at 131, p. 382, 359-60; 90-6, at 128, p. 366, 136,
pp. 396-97).
On June 22, Ms. Broyard informed Ms. Hughes that
her request had been denied, and Ms. Hughes called Plaintiff’s
supervisor regarding the matter.
4
(ECF No. 89-11, at 66, pp.
254-55, 67, p. 257).
That afternoon, Plaintiff’s supervisor e-
mailed Plaintiff, asking her to call Ms. Hughes.
(ECF Nos. 89-
4, at 137, pp. 403-04, 362; 89-12, at 38, p. 141; 90-6, at 138,
pp. 403-04).
Most of the remaining facts are in dispute.
According to
Plaintiff, when she called Ms. Hughes in the afternoon on June
22,
Ms.
yelled
Hughes
and
“immediately
cursed
at
her
started
for
not
directly regarding her request.
While
Plaintiff
diffuse
the
tried
to
situation,”
yelling at [Plaintiff].”
speaking
[her]
with
off”
Ms.
and
Broyard
(ECF No. 90-6, at 138, p. 405).
speak
Ms.
telling
calmly
Hughes
with
“ke[pt]
(Id. at 138, p. 406).
Ms.
Hughes
jumping
in
“to
and
When Ms. Hughes
demanded that Plaintiff participate on a conference call the
following day, Plaintiff informed Ms. Hughes that she would be
unavailable
and
on
husband’s family.
don’t
give
a
approved
leave
out
of
town
visiting
her
In response, Ms. Hughes told Plaintiff, “I
damn
about
your
husband’s
family.”
(Id.).
Believing that she hung up the phone on Plaintiff, Ms. Hughes
began speaking to others in her company, referring to Plaintiff
as “arrogant” and “incompetent,” and stating in reference to
Plaintiff, “I don’t know who the hell this girl thinks she is,
but I am writing her ass up.”
10).
According
to
(ECF No. 90-6, at 139, pp. 408-
Defendant,
Plaintiff during the conversation.
5
Ms.
Hughes
never
yelled
at
Rather, Plaintiff yelled so
loudly at Ms. Hughes that Plaintiff’s voice could be overheard
by others through the phone.
(ECF Nos. 89-8, at 49, pp. 190-92,
63, pp. 246-48, 75, p. 294; 89-11, at 68, pp. 263-64; 89-13, at
2; 89-14, at 2-3).
According to Ms. Hughes, she told Plaintiff,
“calm down,” “[w]e only need five minutes of your time,” and
attempted to schedule a time for the conference call.
89-11, at 68, pp. 263-64).
(ECF No.
After Plaintiff refused, Ms. Hughes
hung up the phone on Plaintiff.
(Id. at 68, p. 264)
At about 9:30 a.m. on June 23, Plaintiff called TV One’s
Human Resources Vice President Sharon Alston and left a voice
message stating:
“I am making a complaint against Ms. Hughes
for harassment. . . . [S]he cursed me out in
a phone conversation yesterday when I told
her that I was with my husband’s family in
Minnesota . . . I think she wants me fired
because I told her previously that I
wouldn’t marry her son.
Please call me as
soon as possible so I can give you more
details about my complaint.”
(ECF No. 90-11, at 2-3).
Plaintiff also e-mailed Ms. Alton,
directing Ms. Alston to her voice message.
(Id. at 3).
Ms.
Alston was not available but responded to Plaintiff’s e-mail,
stating that she was available to speak with Plaintiff in the
afternoon.
Plaintiff
was
not
available
at
that
time
and
requested to speak with Ms. Alston the following day (ECF No.
89-4, at 140, pp. 416-18, 366).
6
In the afternoon on June 23, Ms. Hughes contacted Jackie
Kindall, Radio One’s Senior Vice President of Human Resources,
and told her about the call with Plaintiff.
(ECF Nos. 89-8, at
29, pp. 110-11, 40, p. 155; 89-11, at 68-69, pp. 264-65).
Ms.
Hughes stated that she “wants [Plaintiff] out,” “didn’t want
[Plaintiff] back in the building” and “Kimberly Dawkins can help
fill in on the talent side for TV One when we fire [Plaintiff].”
(ECF No. 89-8, at 36-37, pp. 140-43, 38, pp. 145-47).
Ms.
Kindall then contacted Ms. Alston, who “handle[s] TV One HR
issues,” and told her that, “[Ms. Hughes] wants [Plaintiff] on
administrative
leave,”
and
instructed
Ms.
Alston
to
tell
Plaintiff not to report to Los Angeles for a planned photo shoot
because she is on administrative leave.
87).
(Id. at 73, pp. 286-
According to Defendant, Ms. Alston and Ms. Kindall agreed
during their conversation that they would investigate the matter
between Plaintiff and Ms. Hughes.
Ms. Alston would speak with
Plaintiff regarding the dispute and Ms. Kindall would speak with
Tony Washington and Jody Williams who were “witnesses to the
conversation with [Plaintiff] and Ms. H[ughes].”
at 47-49, pp. 182-90).
(ECF No. 89-8,
Ms. Alston then called Mr. Washington
and Ms. Williams, who corroborated Ms. Hughes’ account of the
June 22 phone conversation with Plaintiff.
(Id.).
According to
Plaintiff, this investigation was a cover-up for Ms. Hughes’
7
instructions to Ms. Kindall the day before to fire Plaintiff.
(ECF No. 90-13, at 38, pp. 146-47).
When Plaintiff spoke with Ms. Alston on the morning of June
24
regarding
her
voice
message
and
e-mail
sent
on
June
23,
Plaintiff recounted the phone conversation with Ms. Hughes on
June 22 and provided a full history of her treatment by Ms.
Hughes at TV One.
Alston
informed
(ECF No. 90-15, at 2-4).
Plaintiff
that
she
was
In response, Ms.
being
administrative leave pending an investigation.
placed
on
(ECF Nos. 89-4,
at 141, p. 420; 90-6, at 145, pp. 431-32).
In
the
afternoon
Kindall,
Linda
Officer,
and
on
Vilardo,
in-house
June
24,
Ms.
Alston
met
Chief
Administrative
Radio
One’s
legal
counsel,
to
with
discuss
Ms.
her
investigation of the dispute between Plaintiff and Ms. Hughes.
(ECF No. 89-8, at 64, pp. 250-52).
According to Defendant, at
that meeting, Ms. Vilardo determined that Plaintiff’s employment
should be terminated for insubordination.
(ECF Nos. 89-8, at
80, pp. 314-15; 89-15, at 73, p. 283; 89-16, at 34, p. 131).
Plaintiff was not notified of the decision to terminate her
employment
on
June
24
because,
on
June
25,
Ms.
Kindall
preparing a severance package to be offered to Plaintiff.
was
(ECF
Nos. 89-8, at 91, p. 358, 95, p. 373-74, 160-61; 89-16, at 42,
pp. 163-64).
Alston
a
On the morning of June 26, Plaintiff sent to Ms.
written
complaint
against
8
Defendant
for
gender
discrimination and harassment.
375; 90-18, at 2).
(ECF No. 89-4, at 144, p. 434,
Later that day, Plaintiff was informed by
letter that her employment had been terminated effective June
24.
(ECF Nos. 89-4, at 148, pp. 448-49, 377-389; 90-19, at 2-
3).
B.
Procedural Background
On March 13, 2017, Defendant moved for summary judgment.
(ECF No. 89).
On March 27, Plaintiff filed an opposition and
moved for summary judgment with respect to Defendant’s seventh
and ninth affirmative defenses asserted in its answer.
90).
Defendant replied and filed an opposition to Plaintiff’s
motion on April 10.
(ECF No. 91).
Plaintiff filed a reply and
amended reply to Defendant’s opposition.
II.
(ECF No.
(ECF Nos. 92; 93).
Standard of Review
A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party
is
entitled
to
judgment
as
a
matter
of
law.
See
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);
Anderson
v.
Liberty
Lobby,
Inc.,
477
U.S.
242,
(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
prevail
on
a
motion
for
summary
judgment,
the
moving
250
To
party
generally bears the burden of showing that there is no genuine
dispute as to any material fact.
248-50.
Liberty Lobby, 477 U.S. at
A dispute about a material fact is genuine “if the
9
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”
inquiry,
a
court
must
Id. at 249.
view
the
In undertaking this
facts
and
the
reasonable
inferences drawn therefrom “in the light most favorable to the
party
opposing
Zenith
Radio
the
motion,”
Corp.,
475
Matsushita
U.S.
574,
587
Elec.
Indus.
(1986)(quoting
Co.
v.
United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also
EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir.
2005), but a “party cannot create a genuine dispute of material
fact
through
mere
speculation
or
compilation
of
inferences.”
Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation
omitted).
When faced with cross motions for summary judgment, the
court must consider “each motion separately on its own merits to
determine whether either of the parties deserves judgment as a
matter of law.”
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th
Cir. 2003) (citation and internal quotation marks omitted).
The
court
for
reviews
each
motion
under
summary judgment outlined above.
the
familiar
standard
Desmond v. PNGI Charles Town
Gaming, L.L.C., 630 F.3d 351, 354 (4th Cir. 2011).
The court
must deny both motions if there is a genuine dispute of material
fact, “[b]ut if there is no genuine issue and one or the other
party is entitled to prevail as a matter of law, the court will
10
render
judgment.”
10A
Charles
A.
Wright,
et
al.,
Federal
an
employer
Practice & Procedure § 2720 (3d ed. 1998).
III. Analysis
1.
Gender Discrimination
Under
Title
VII,
it
is
unlawful
for
“to
discriminate against an individual with respect to . . . terms,
conditions,
or
privileges
individual’s . . . sex.”
of
employment
because
42 U.S.C. § 2000e–2(a)(1).
of
such
In Count
I, Plaintiff asserts claims of gender discrimination based on
unlawful harassment in violation of Title VII.3
Courts have long endorsed and adopted the
EEOC’s interpretation that sexual harassment
is a form of prohibited sex discrimination.
See Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 65–66 (1986). Actionable workplace
sexual harassment claims come in two forms:
(1) claims of a hostile work environment due
to severe or pervasive sexual harassment and
(2)
claims
of
quid
pro
quo
sexual
harassment.
See Fitter v. Cmty. Imaging
Partners, Inc., 735 F.Supp.2d 379, 390
(D.Md. 2010).
Bruce v. Fair Collections & Outsourcing, Inc., No. CCB-13-3200,
2014 WL 3052477, at *3 (D.Md. June 30, 2014).
Here, Plaintiff
claims that she was subjected to a hostile work environment on
the
basis
of
gender
as
a
result
3
of
“severe
and
pervasive
In the court’s memorandum opinion denying Defendant’s
motion to dismiss, the court dismissed Plaintiff’s claims to the
extent that Count I alleges unlawful gender discrimination
beyond a claim for hostile work environment.
(ECF No. 27, at
18).
11
harassment . . . by her supervisors.”
establish
a
hostile
work
(ECF No. 16 ¶ 82).
environment
claim
based
on
To
gender,
Plaintiff must show that: (1) the harassment was unwelcome; (2)
the harassment was based on her gender; (3) the harassment was
sufficiently
severe
or
pervasive
to
alter
the
conditions
of
employment and create an abusive atmosphere; and (4) there is
some basis for imposing liability on the employer.
See Matvia
v. Bald Head Island Mgmt., 259 F.3d 261, 266 (4th Cir. 2001).
a.
Timeliness
Defendant
first
discrimination
and
argues
that
harassment
are
Plaintiff’s
time-barred
claims
because
of
the
alleged discriminatory acts occurred more than 300 days before
Plaintiff filed her EEOC charge on August 5, 2014.
1, at 19).
(ECF No. 89-
Plaintiff contends that the continuing violation
theory applies to her hostile work environment claim and allows
the court to look beyond the EEOC filing period.
(ECF No. 90-1,
at 32).
Generally, under Title VII, a charge of discrimination must
be
filed
unlawful
5(e)(1).
with
the
employment
EEOC
within
practice
180
days
occurred.
after
42
the
U.S.C.
alleged
§
2000e-
In a “deferral” jurisdiction, however, the period is
extended to 300 days.
See Edelman v. Lynchburg Coll., 300 F.3d
400, 404 n.3 (4th Cir. 2002); Prelich v. Med. Res., Inc., 813
F.Supp.2d 654, 661 (D.Md. 2011).
12
Maryland is a deferral state
under Title VII, and the 300-day timeframe applies.
See, e.g.,
Burgess v. Sys. High Corp., No. ELH-14-3895, 2015 WL 6956516, at
*3 (D.Md. Nov. 10, 2015).
The statutory window applies to any
“discrete acts” of discrimination, “such as termination, failure
to promote, denial of transfer, or refusal to hire . . . .
incident
of
discrimination
and
each
retaliatory
Each
adverse
employment decision constitutes a separate actionable ‘unlawful
employment practice.’”
536 U.S. 101, 114 (2002).
Nat’l R.R. Passenger Corp. v. Morgan,
“Charges filed outside [the statutory
window] are barred, but a discriminatory allegation may still
constitute
relevant
background
evidence
for
valid
claims.”
Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th
Cir. 1996) (citing United Air Lines, Inc. v. Evans, 431 U.S.
553, 558 (1977)).
Under the continuing violation theory,
“[i]f one act in a continuous history of
discriminatory conduct falls within the
charge filing period, then acts that are
plausibly or sufficiently related to that
act, which fall outside the filing period,
may
be
considered
for
purposes
of
liability.”
Lewis v. Norfolk S. Corp., 271
F.Supp.2d 807, 812 (E.D.Va. 2003).
The
continuing
violation
theory
applies
to
hostile work environment claims, which are
“composed of a series of separate acts that
collectively
constitute
one
unlawful
employment practice” and are timely if “any
act contributing to the claim occur[red]
within the filing period.”
[Morgan, 536
U.S. at 117] (“It does not matter . . . that
some of the component acts of the [claim]
fall outside the statutory time period.”).
13
The acts that occur within the filing period
need not, standing alone, constitute a
violation of Title VII for the continuing
violation doctrine to apply. See Gilliam v.
S. Carolina Dep’t of Juvenile Justice, 474
F.3d 134, 141 (4th Cir. 2007).
Williams v. Silver Spring Volunteer Fire Dep’t, 86 F.Supp.3d
398, 411 (D.Md. 2015); see White v. BFI Waste Servs., LLC, 375
F.3d
288,
293
(4th
Cir.
2004)
(holding
that
a
hostile
work
environment claim “may appropriately extend even to acts that
occurred
before
the
relevant
limitations
period,
because
the
hostile work environment continued within the limitations period
as well”).
Here, Plaintiff testified in deposition that the alleged
offensive conduct by Ms. Hughes and Mr. Liggins commenced with
Ms. Hughes’ comments urging a romantic relationship with Mr.
Liggins in late October 2004 (ECF No. 90-6, at 45, p. 173),
outside the 300-day filing period.
Plaintiff further testified
that the offensive conduct continued throughout the tenure of
her employment with TV One (Id. at 25-26, pp. 90-97, 31-32, pp.
114-21, 46, pp. 176-77, 49, pp. 187-89, 50, pp. 190-92, 53-55,
pp. 205-13, 56-57, pp. 215-18, 124, pp. 347-50), and culminated
with Mr. Liggins’ statements at a gathering of TV One employees
in January 2014 and her termination after a dispute with Ms.
Hughes in June 2014 (Id. at 27-28, pp. 101-02, 138-39, pp. 40510), within the 300-day filing period.
14
Viewing the evidence in
the light most favorable to Plaintiff, Plaintiff has identified
specific acts within the limitations period that contributed to
the
hostile
work
environment.
Therefore,
the
continuing
violation doctrine might apply, and Defendant’s motion on this
issue
will
be
denied.
Morgan,
536
U.S.
at
117;
Zidan
v.
Maryland, No. SKG-10-1792, 2012 WL 2923150, at *7 (D.Md. July 7,
2012)
(holding
that
the
plaintiff’s
claim
for
hostile
work
environment was not time barred because the plaintiff testified
in deposition that the alleged offensive conduct continued up
until her termination, within the limitations period).
b.
Harassment Based on Gender
Defendant
next
argues
that
“Plaintiff
cannot
establish
gender-based harassment because the incidents about which she
complains had nothing whatsoever to do with her sex.”
(ECF No.
89-1, at 23).
To
establish
that
the
conduct
was
based
on
gender,
Plaintiff must show that “but for” her gender, she “would not
have been the victim of the alleged discrimination.”
First
Union
(citation
Nat’l
omitted).
Bank,
202
F.3d
Gender-based
234,
242
animosity
(4th
can
Smith v.
Cir.
be
2000)
shown
by
direct evidence of discrimination, or differential treatment of
similarly situated male employees.
142;
See Gilliam, 474 F.3d at
Causey v. Balog, 162 F.3d 795, 801–02 (4th
Cir. 1998).
Plaintiff need not show that “sexual advances or propositions”
15
were involved.
Ocheltree v. Scollon Prods., Inc., 335 F.3d 325,
331 (4th Cir. 2003) (internal citation omitted).
In Ocheltree, the United States Court of Appeals for the
Fourth Circuit determined that “much of the sex-laden and sexist
talk
and
conduct
in
the
production
shop
plaintiff] because of her sex . . . .
was
aimed
at
[the
Much of the conduct, a
jury could find, was particularly offensive to women and was
intended to provoke [the plaintiff’s] reaction as a woman.”
at
332.
Plaintiff
testified
in
deposition
that
Ms.
Id.
Hughes
repeatedly stated that she wanted Plaintiff to marry Mr. Liggins
and
would
introduce
daughter-in-law,”
Plaintiff
fueling
to
colleagues
workplace
rumors
relationship between Plaintiff and Mr. Liggins.
as
her
of
a
“future
romantic
(ECF No. 90-6,
at 25, p. 92, 46, pp. 176-77, 49, pp. 188-89).
On another
occasion, Ms. Hughes commented to Plaintiff that she did not
know why Plaintiff had not married Mr. Liggins yet, stating that
Plaintiff was old and her babies would likely be retarded.
at 49, p. 187, 54, p. 207).
(Id.
Plaintiff’s testimony that she was
the subject of workplace rumors that she and Mr. Liggins were
romantically involved (Id. at 25-26, pp. 90-95) is corroborated
by
former
Officer
TV
Karen
One
Executive
Wishart’s
Vice
deposition
President
testimony
and
Chief
that
she
Legal
heard
about the rumors from other TV One employees (ECF No. 90-7, at
28, p. 101).
When Plaintiff went to Mr. Liggins to address the
16
rumors, Mr. Liggins responded, “at least it makes me look good.”
(ECF
No.
90-6,
at
32,
p.
118).
Viewed
in
the
light
most
favorable to Plaintiff, a reasonable jury could find that, but
for
her
status
as
a
woman,
Plaintiff
would
not
have
been
subjected to the alleged offensive conduct by Ms. Hughes and Mr.
Liggins
and
the
workplace
rumors
that
she
was
involved
romantically with Mr. Liggins.
c.
Severe and Pervasive Conduct
Defendant further argues that it is entitled to summary
judgment on Plaintiff’s hostile work environment claim because
Plaintiff cannot establish that the alleged offensive conduct
was sufficiently severe and pervasive.
A hostile work environment is marked by “extreme” conduct,
and “simple teasing, offhand comments, and isolated incidents
(unless
extremely
serious)
will
not
amount
to
discriminatory
changes in the terms and conditions of employment.”
City of Boca Raton, 524 U.S. 775, 788 (1998).
Faragher v.
The conduct must
be both subjectively and objectively offensive in order to be
cognizable
under
Title
VII.
Id.
at
787;
EEOC
Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008).
whether
the
offending
conduct
was
v.
Sunbelt
In determining
sufficiently
severe
or
pervasive, the court must consider: “(1) the frequency of the
discriminatory
physically
conduct;
threatening
(2)
or
its
severity;
humiliating,
17
or
(3)
a
whether
mere
it
is
offensive
utterance; and (4) whether it unreasonably interferes with an
employee’s work performance.”
Smith, 202 F.3d at 242; see also
Sunbelt Rentals, 521 F.3d at 315.
need
not
be
both
severe
and
Furthermore, “[t]he behavior
pervasive:
the
more
severe
the
conduct, the less pervasive the plaintiff need prove that it
is.”
Reed
v.
(D.Md.
2008)
Airtran
(citations
Airways,
531
omitted).
F.Supp.2d
Plaintiffs
660,
in
669
the
n.15
Fourth
Circuit
must clear a high bar in order to satisfy
the severe or pervasive test.
Workplaces
are not always harmonious locales, and even
incidents that would objectively give rise
to bruised or wounded feelings will not on
that account satisfy the severe or pervasive
standard. Some rolling with the punches is a
fact of workplace life.
Thus, complaints
premised
on
nothing
more
than
“rude
treatment
by
[coworkers],”
Baqir
v.
Principi, 434 F.3d 733, 747 (4th Cir. 2006),
“callous behavior by [one’s] superiors,”
Bass, 324 F.3d at 765, or “a routine
difference
of
opinion
and
personality
conflict with [one’s] supervisor,” Hawkins
v. PepsiCo, Inc., 203 F.3d 274, 276 (4th Cir.
2000), are not actionable under Title VII.
Sunbelt Rentals, 521 F.3d at 315-16.
“[A] supervisor’s strict
management style or degree of supervision is not evidence of
actionable
harassment.
However,
a
work
environment
can
be
considered hostile if it is consumed by remarks that intimidate,
ridicule, and maliciously demean the status of women.”
Engler
v. Harris Corp., No. GLR-11-3597, 2012 WL 3745710, at *5 (D.Md.
Aug. 28, 2012) (citations and internal quotation marks omitted).
18
Plaintiff has presented evidence that, beginning in 2004,
Ms. Hughes repeatedly stated that she wanted Plaintiff to marry
Mr. Liggins and would introduce Plaintiff to colleagues as her
“future daughter-in-law.”
176-77, 49, pp. 188-89).
(ECF No. 90-6, at 25, p. 92, 46, pp.
Ms. Hughes often stated her desire for
Plaintiff and Mr. Liggins to marry in front of others, fueling
workplace rumors of a romantic relationship between Plaintiff
and Mr. Liggins.
rumors
from
(Id. at 25, p. 92).
multiple
colleagues
in
Plaintiff heard these
the
workplace
[times] to count” and the rumors “never stopped.”
26, pp. 93-94).
“too
many
(Id. at 25-
Even after Plaintiff married her husband in
2012, she was subjected to jokes that she “[should have] just
married
[Mr.
Liggins]
like
[she]
was
supposed
to.”
(Id.).
According to Plaintiff, when Ms. Hughes realized that Plaintiff
was not going to marry Mr. Liggins she began to continuously
harass Plaintiff, including publicly berating Plaintiff in front
of her co-workers (Id. at 53-54, pp. 205-07); demanding that
Plaintiff
standard
make
requests
industry
for
protocol
talent
(Id.
at
in
a
manner
54-55,
pp.
contrary
208-13);
to
and
chastising Plaintiff for taking time off for her wedding and
honeymoon (Id. at 56-57, pp. 214-18).
Plaintiff has also presented evidence that, in addition to
being
frequent
and
pervasive,
the
conduct
severe to create a hostile work environment.
19
was
sufficiently
“When evaluating
the context in which harassment takes place, [the Fourth Circuit
has]
often
focused
on
the
harasser and the victim.”
609
F.3d
quotation
320,
329
marks
(4th
disparity
in
power
between
the
EEOC v. Fairbrook Med. Clinic, P.A.,
Cir.
omitted).
2010)
The
(citation
severity
and
of
the
internal
alleged
harassment is exacerbated when a supervisor is the tormentor.
See Emond v. Corr. Med. Servs., Inc., No. JKB-10–1680, 2011 WL
2712749, at *7 (D.Md. July 12, 2011).
Liggins
exercised
significant
As Ms. Hughes and Mr.
authority
over
Plaintiff,
severity of the alleged harassment is enhanced.
the
In addition,
degrading and humiliating conduct can be severe or pervasive
even if not physically threatening.
See Jennings v. Univ. of N.
Carolina, 482 F.3d 686, 698-99 (4th Cir. 2007).
Plaintiff has
presented evidence that she began therapy in 2008 to cope with
depression resulting from Ms. Hughes’ conduct, workplace rumors,
and colleagues thinking that she only got her job by sleeping
with
Mr.
Liggins.
(ECF
No.
90-6,
at
157-58,
pp.
479-84).
Certainly, the effect on the employee’s psychological well-being
is relevant to determining whether the environment was hostile
or abusive.
(1993).
Harris v. Forklift Systems, 510 U.S. 17, 22-23
Drawing all reasonable inferences in the light most
favorable to Plaintiff, a reasonable jury could conclude that
the alleged conduct was so severe or pervasive that it created a
hostile work environment.
20
d.
Affirmative Defense
Defendant argues that even if Plaintiff can establish a
prima facie case for hostile work environment, it cannot be held
liable because (1) it exercised reasonable care to prevent and
promptly
correct
any
sexually
harassing
behavior,
and
(2)
Plaintiff unreasonably failed to take advantage of preventative
or corrective opportunities.
(ECF No. 89-1, at 30).
The holdings of Faragher v. City of Boca Raton, 524 U.S.
775, 807–08 (1998), and Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 765 (1998), establish that an employer is not
vicariously liable for an actionable hostile work environment
created by a supervisor with immediate (or successively higher)
authority over the employee when:
(a) [ ] the employer exercised reasonable
care to prevent and correct promptly any
sexually harassing behavior, and
(b) [ ] the plaintiff employee unreasonably
failed to take advantage of any preventive
or corrective opportunities provided by the
employer or to avoid harm otherwise.
Ellerth, 524 U.S. at 765.
available
to
an
The Faragher/Ellerth defense is not
employer,
however,
when
a
“supervisor’s
harassment culminates in a tangible employment action, such as
discharge, demotion, or undesirable reassignment.”
Faragher,
524 U.S. at 808 (citing Ellerth, 524 U.S. at 762–63).
Fourth
Circuit precedent requires “some nexus between the harassment
and the tangible employment action” for the defense to become
21
unavailable.
Dulaney v. Packaging Corp. of Am., 673 F.3d 323,
332 (4th Cir. 2012); see also Lissau v. S. Food Serv., 159 F.3d
177, 182 (4th Cir. 1998) (“Tangible employment actions, if not
taken for discriminatory reasons, do not vitiate the affirmative
defense.”).
Plaintiff argues that the affirmative defense is
not available to Defendant because a tangible employment action
was taken against Plaintiff.
(ECF No. 90-1, at 44-45).
In its
reply, Defendant asserts that because the decision to terminate
Plaintiff
was
unrelated
to
the
alleged
harassment,
affirmative defense is still available to it.
19-20).
Here,
Plaintiff’s
tangible employment action.
discharge
was
the
(ECF No. 91, at
unquestionably
a
A genuine dispute of material fact
exists, however, as to whether some nexus exists between the
alleged harassment by Ms. Hughes and Plaintiff’s termination.
According to Defendant, its decision to terminate Plaintiff’s
employment was made on June 24, 2014, after concluding that
Plaintiff was “belligerent” and “insubordinate” to Ms. Hughes on
June 22.
(ECF Nos. 89-8, at 64, pp. 249-52, 71, p. 278, 75, pp.
294-95, 79, p. 312, 80, pp. 314-15; 89-15, at 63, pp. 242-43;
89-16, at 34, pp. 130-31).
evidence
that
investigation
in
by
the
Ms.
However, Plaintiff has presented
afternoon
Kindall
on
and
June
Ms.
23
-
Alston
before
and
any
before
Defendant’s alleged termination decision - Ms. Hughes instructed
Ms. Kindall to discharge Plaintiff (ECF No. 90-13, at 38, p.
22
146).
Drawing
all
reasonable
inferences
in
the
light
most
favorable to Plaintiff, a reasonable jury could find a nexus
between the alleged harassment by Ms. Hughes and the decision to
discharge Plaintiff.
fact
exists
available
as
to
Therefore, a genuine dispute of material
to
whether
Defendant,
the
and
Faragher/Ellerth
Defendant’s
motion
defense
for
is
summary
judgment on Plaintiff’s hostile work environment claim will be
denied.
2.
Retaliation
Defendant
granted
next
against
Plaintiff
argues
Plaintiff
cannot
establish
that
on
summary
her
that
judgment
retaliation
she
engaged
should
claim
in
be
because
protected
activity or that “but for” her alleged protected activity she
would not have been discharged.
(ECF No. 89-1, at 32).
To establish a prima facie case of retaliation, Plaintiff
must show the following elements: (1) she engaged in a protected
activity; (2) her employer took an adverse employment action
against her; and (3) there was a causal connection between the
protected
activity
and
the
adverse
employment
action.
See
Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 443 (4th Cir.
1998).
The plaintiff’s burden in this regard is “not onerous,”
and requires only that she prove each element by a preponderance
of the evidence.
450
U.S.
248,
See Texas Dept. of Cmty. Affairs v. Burdine,
253
(1981).
If
23
the
plaintiff
makes
such
a
showing,
the
burden
shifts
to
the
employer
to
offer
a
non-
discriminatory basis for the adverse employment action.
Matvia, 259 F.3d at 271.
See
The employee then has the opportunity
to prove that the asserted reason is pretextual.
Id.; see also
Smith, 202 F.3d at 248 (“The McDonnell Douglas burden-shifting
scheme
applies
in
analyzing
retaliation
claims
under
Title
VII.”).
Title
VII
makes
it
unlawful
for
“an
employer
to
discriminate against any of [its] employees . . . because [s]he
has
opposed
subchapter,
any
or
practice
because
made
[s]he
an
has
unlawful
made
a
practice
charge,
by
this
testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.”
2000e–3(a).
42 U.S.C. §
“Protected activity of an employee, therefore, can
take the form of either opposing a practice prohibited under
Title
VII
charge,
(pursuant
testifying,
to
the
opposition
assisting,
or
clause)
or
participating
making
a
in
an
investigation, proceeding, or hearing under Title VII (pursuant
to
the
participation
clause).”
Pitter
v.
Cmty.
Imaging
Partners, Inc., 735 F.Supp.2d 379, 395 (D.Md. 2010).
a.
Protected Activity
Defendant
argues
that
Plaintiff
cannot
show
that
she
engaged in protected activity because “refusal of a suggestion
of marriage is not protected activity as a matter of law.”
24
(ECF
No.
89-1,
at
33).
Here,
Plaintiff
has
presented
evidence
showing that she engaged in protected activity by (1) making an
informal
complaint
to
Human
Resources
Vice
President
Sharon
Alston when she left a voice message on June 23, 2014, alleging
harassment
by
Ms.
Hughes
(ECF
No.
90-11,
at
2-3);
and
(2)
submitting a complaint via email to Ms. Alston against Defendant
for “gender discrimination and harassment” on the morning of
June 26, 2014 (ECF No. 90-18, at 2).
EEOC v. Navy Federal
Credit Union, 424 F.3d 397, 406 (4th Cir. 2005) (“[P]rotected
oppositional activities may include ‘staging informal protests
and voicing one’s own opinions in order to bring attention to an
employer’s discriminatory activities,’ as well as ‘complain[ts]
.
.
.
about
suspected
violations.’”
(internal
citations
omitted)).
In its reply to Plaintiff’s opposition, Defendant contends
that Plaintiff’s verbal complaint on June 23 does not constitute
protected activity because nothing in her voicemail indicates
that she was alleging gender-based harassment.
14).
(ECF No. 91, at
In her verbal complaint, Plaintiff stated that she was
“making a complaint against Ms. Hughes for harassment,” that Ms.
Hughes “cursed [her] out . . . when [she] told her that [she]
was with [her] husband’s family in Minnesota,” and that Ms.
Hughes “wants [her] fired because . . . [she] wouldn’t marry
[Mr. Liggins].”
(ECF No. 90-11, at 2-3).
25
Title VII “protects
activity in opposition not only to employment actions actually
unlawful under Title VII but also employment actions an employee
reasonably believes to be unlawful.”
Navy Federal, 424 F.3d at
406; see also DeMasters v. Carilion Clinic, 796 F.3d 409, 417
(4th
Cir.
2015)
“unlawful
(noting
employment
that
the
practice”
Fourth
Circuit
broadly).
As
interprets
noted
above,
Plaintiff has put forth sufficient evidence that, prior to her
complaint
on
June
harassment
in
the
23,
she
workplace,
was
subjected
including
Ms.
to
gender-based
Hughes
repeatedly
urging a romantic relationship between Plaintiff and Mr. Liggins
and
Ms.
workers
Hughes
once
publicly
Ms.
berating
Hughes
Plaintiff
realized
that
interested romantically in Mr. Liggins.
and
record
presented,
there
is
in
front
Plaintiff
of
co-
was
not
In light of the facts
sufficient
evidence
that
Plaintiff held a subjectively and objectively reasonable belief
that Ms. Hughes’ offensive conduct, because of her refusal to
marry Mr. Liggins, was an unlawful employment practice.
Adams
v.
Giant
Food,
225
F.Supp.2d
600,
606
(D.Md.
See
2002).
Therefore, Plaintiff has put forth sufficient evidence that she
engaged in protected activity when she made a verbal complaint
to Ms. Alston on June 23.
26
b.
Causal Connection Between Protected Activity and
Termination
Defendant
protected
argues
activity,
that
Plaintiff
even
if
cannot
Plaintiff
show
that
engaged
but
for
in
her
protected activity she would not have been terminated because
(1) regardless of any protected activity, Defendant would have
fired Plaintiff for being belligerent and insubordinate to Ms.
Hughes on June 22, 2014; and (2) Plaintiff’s alleged protected
activity came after Defendant’s decision to terminate had been
made on June 24.
(ECF No. 89-1, at 33, 34).
“Normally, very little evidence of a causal connection is
required
to
establish
a
prima
facie
F.Supp.2d at 396 (citation omitted).
adverse
employment
action
“shortly
case.”
Pitter,
735
If the employer takes the
after”
learning
about
the
protected activity, courts may infer a causal connection between
the two.
Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004),
abrogation on other grounds recognized by Waag v. Sotera Def.
Sols., Inc., 857 F.3d 179, 192 (4th Cir. 2017).
Where temporal
proximity
however,
is
the
only
evidence
of
causation,
temporal proximity must be very close,” as it is here.
Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).
“the
Clark
According
to Defendant, the decision to terminate Plaintiff was made on
June 24 and communicated to Plaintiff on June 26.
Defendant
argues that because it made a tentative decision to discharge
27
Plaintiff on June 24, before Plaintiff submitted her written
complaint
on
June
26,
the
fact
that
it
proceeded
with
its
decision to discharge Plaintiff does not demonstrate causality.
(ECF
No.
89-1,
at
37)
(citing
Breeden,
532
U.S.
at
272).
Defendant’s argument fails, however, because even assuming that
it made a tentative decision to terminate Plaintiff on June 24,
that decision was made the day after Ms. Alston learned about
Plaintiff’s complaint alleging harassment by Ms. Hughes on June
23.
(ECF Nos. 90-11, at 2-3; 90-12, at 2).
Under these facts,
there is sufficient evidence of a causal connection between the
protected
activity
and
Therefore,
Plaintiff
has
the
adverse
put
forth
employment
sufficient
action.
evidence
to
support her retaliation claim.
Defendant
reasons
for
has
set
forth
Plaintiff’s
legitimate,
termination,
non-discriminatory
i.e.,
that
she
was
terminated for being belligerent and insubordinate to Ms. Hughes
on June 22.
Plaintiff
to
(ECF No. 89-1, at 34).
prove
by
a
Thus, the burden returns to
preponderance
of
the
evidence
that
Defendant’s reasons were not its true reason, but were pretext
for
discrimination.
Hill
v.
Lockheed
Martin
Logistics
Management, Inc., 354 F.3d 277, 285 (4th Cir. 2004).
Plaintiff
argues, inter alia, that “the fact that Ms. Hughes told Ms.
Kindall
that
[Plaintiff]
was
to
be
fired
proves
that
subsequent investigation and conclusion were pretextual.”
28
any
(ECF
No. 90-1, at 42).
Although Defendant insists that Ms. Kindall
was the investigator into the dispute between Plaintiff and Ms.
Hughes on June 22, and Linda Vilardo was the decision maker for
Plaintiff’s termination, Plaintiff has presented evidence that
on June 23 – before Defendant’s alleged decision to terminate
Plaintiff on June 24 - Ms. Hughes instructed Ms. Kindall to have
Plaintiff fired.
“[t]he
court
department
(ECF No. 90-13, at 38, p. 146).
‘does
not
sit
as
weighing
the
a
prudence
kind
of
of
Although
super-personnel
employment
decisions,’”
Hunter v. Vilsack, No. DKC-07-2655, 2010 WL 1257997, at *12
(D.Md. Mar. 26, 2010) (citations omitted), “a complaining party
may
demonstrate
employment
that
action
discrimination
if
.
.
.
motivated
the
an
individual
adverse
with
the
discriminatory animus ‘possessed such authority as to be viewed
as the one principally responsible for the [adverse employment]
decision or the actual decisionmaker for the employer,’” Vicino
v.
Maryland,
982
omitted).
F.Supp.2d
Here,
although
discriminatory
reasons
has
sufficient
presented
termination
were
Defendant’s
motion
601,
for
611
(D.Md.
Defendant
Plaintiff’s
evidence
pretext
for
for
29
(citations
proffered
termination,
the
judgment
on
non-
Plaintiff
reasons
discrimination.
summary
retaliation claim is denied.
that
has
2013)
for
her
Therefore,
Plaintiff’s
IV.
Plaintiff’s Cross Motion for Summary Judgment
Plaintiff
moves
for
summary
judgment
with
respect
to
Defendant’s seventh and ninth affirmative defenses asserted in
its answer.
Plaintiff argues that because Defendant took a
tangible employment action against her, the affirmative defense
is
not
available
to
Defendant.
(ECF
No.
90-1,
at
44-45).
Defendant argues in its opposition that, because the decision to
terminate Plaintiff was unrelated to the alleged harassment, the
affirmative defense is still available to it.
(ECF No. 91, at
19-20).
The
Faragher/Ellerth
employer
when
a
tangible
employment
defense
“supervisor’s
action,
undesirable reassignment.”
such
is
not
harassment
as
available
culminates
discharge,
to
in
demotion,
an
a
or
Faragher, 524 U.S. at 808 (citing
Ellerth, 524 U.S. at 762–63). However, “some nexus between the
harassment and the tangible employment action” is required for
the defense to become unavailable.
Dulaney, 673 F.3d at 332.
As noted above, a genuine dispute of material fact exists
as to whether some nexus exists between Plaintiff’s termination
and
Ms.
Hughes’
affirmative
alleged
defense
is
harassment
available
to
and
thus
Defendant.
whether
the
Therefore,
Plaintiff is not entitled to summary judgment with respect to
Defendant’s use of the Faragher/Ellerth defense as a reasonable
jury could find the defense to be applicable.
30
V.
Conclusion
For the foregoing reasons, the cross motions for summary
judgment are denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
31

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